Opinion
CV-20-0311-TUC-JCH (LCK)
03-04-2022
Arnold Mills Granillo, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins United States Magistrate Judge
Petitioner, Arnold Granillo, incarcerated at the Arizona State Prison in Buckeye, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before this Court are the Amended Petition (Doc. 4) and Respondents' Answer (Doc. 15); Petitioner did not file a reply. Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. The Magistrate Judge recommends the District Court, after its independent review of the record, deny the Petition.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was convicted in the Pima County Superior Court on the charge of second-degree murder. (Doc. 15, Ex. J at 3.) On October 20, 2014, the court sentenced him to a presumptive term of 16 years. (Id., Ex. K at 16.)
Petitioner appealed, but appointed counsel filed an Anders brief. (Id., Exs. M, N.) The Arizona Court of Appeals reviewed the record for fundamental error and, finding none, affirmed Petitioner's conviction and sentence. (Id., Ex. O.) The appellate court summarized the facts in support of Petitioner's conviction: "In September 2012, Granillo repeatedly struck the victim with a crowbar, killing her." (Id. at 2.) Petitioner filed a Petition for Review with the Arizona Supreme Court, which was denied on December 3, 2015. (Id., Exs. P, Q.)
Petitioner filed a Notice for Post-Conviction Relief (PCR). (Doc. 15, Ex. S.) Appointed counsel filed a PCR Petition with an appendix. (Id., Exs. U, V.) The PCR court found no basis for an evidentiary hearing and dismissed the Petition. (Id., Ex. Y.) Petitioner filed a Petition for Review with the Arizona Court of Appeals, which granted review but denied relief. (Id., Exs. Z, AA, CC.) Petitioner's Petition for Review in the Arizona Supreme Court was denied on July 30, 2019. (Id., Exs. DD, GG.)
Petitioner initiated this federal habeas action on July 21, 2020. (Doc. 1.) The operative pleading is the Amended Petition filed on July 30, 2020. (Doc. 4.)
DISCUSSION
The Amended Petition includes four multi-part claims. In the body of that petition, Petitioner included very limited factual allegations as to each claim. Respondents, however, interpreted that petition as incorporating all the allegations from Petitioner's PCR Petition. (Doc. 15 at 2, 6.) Petitioner attached his PCR Petition, and the ruling thereon, to his federal habeas Amended Petition and referenced those documents in the pleading. (Doc. 4 at 5-11, 16-46.) For that reason and because Respondents evaluated all the claims raised in the PCR Petition, the Court incorporates the factual allegations from the PCR Petition that relate to, and support, the four claims alleged in the Amended Petition. See Ross v. Williams, 950 F.3d 1160, 1166 (9th Cir. 2020) (interpreting Rule 10(c) as requiring courts to consider exhibits to a habeas petition to be part of the petition for all purposes); Alvarez v. Neven, No. 18-15516, 2021 WL 4922550, at *1 (9th Cir. Oct. 21, 2021) (incorporating facts from attached documents in support of the Petition without an explicit statement of incorporation by Petitioner).
The Court next sets forth the four claims before this Court based on the allegations in the habeas Petition and incorporating additional factual allegations from the attached PCR Petition. Claim 1 alleges the prosecutor committed misconduct when he: (a) commented on Petitioner's right to remain silent; (b) expressed his personal opinion on Petitioner's guilt; and (c) argued irrelevant and prejudicial matters to the jury. (Doc. 4 at 5-6, 17, 38-42.) Claim 2 alleges trial and appellate counsel were ineffective in failing to address effectively: (a) prosecutorial misconduct; (b) the improper admission of Petitioner's statement; and (c) the trial court's refusal to give a manslaughter - sudden quarrel or heat of passion - instruction. And (d) trial counsel was ineffective in failing to present an expert opinion on Petitioner's mental state at the time of the crime. Claim 3 alleges the trial court erred in failing to instruct the jury on manslaughter. Claim 4 alleges trial counsel was ineffective at sentencing in failing to obtain expert psychological testimony to explain the reason for the killing.
Respondents organized the claims based on the structure of the PCR Petition. (Compare Doc. 15 at 6 with Doc. 4 at 17.) The Court, instead, maintains the numbering used in the Amended Petition, adding subparts to correspond with the additional factual allegations from the PCR Petition.
In finding the entirety of the claims alleged in the PCR Petition incorporated into Petitioner's Amended Petition filed here, Respondents included a claim that the trial court erred in denying Petitioner's motion to suppress his statements. However, Petitioner did not allege before this Court that the trial court erred regarding the admission of his statement. (Doc. 4 at 5-10.) He alleged only that trial and appellate counsel were ineffective in handling the admission of his statement. (Id.) Because the Petition does not include even a bare allegation of trial court error regarding the admission of Petitioner's statement, the Court cannot incorporate the factual allegations of the PCR Petition into the pleading before this Court. However, in evaluating Claim 2(b), the Court determined that the trial court did not err in admitting Petitioner's statement. See infra Claim 2(b). Thus, the claim of trial court error also would be without merit.
Respondents argue that Claims 1 and 3 are procedurally defaulted, and all the claims are without merit. The Court first reviews the claims for exhaustion and procedural default and then evaluates the remaining claims on the merits.
EXHAUSTION AND PROCEDURAL DEFAULT
Standard
A writ of habeas corpus may not be granted unless it appears that a petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991). To properly exhaust, a petitioner must "fairly present" the operative facts and the federal legal theory of his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971).
In Arizona, there are two primary procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and PCR proceedings. A habeas petitioner's claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Id. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (stating that the district court must consider whether the claim could be pursued by any presently available state remedy), overruled on other grounds by Apelt v. Ryan, 878 F.3d 800, 827 (9th Cir. 2017). If no remedies are currently available pursuant to Rule 32, the claim is "technically" exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1; see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996).
Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9 (1984). However, the Court will not review the merits of a procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the failure to properly exhaust the claim in state court and prejudice from the alleged constitutional violation or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750.
Analysis of Claims 1 and 3
In Claim 1, Petitioner alleges the prosecutor committed misconduct at trial. In Claim 3, Petitioner alleges the trial court erred in failing to instruct the jury on manslaughter - sudden quarrel or heat of passion. The Arizona Court of Appeals determined that these claims of trial error were waived for failure to raise them on appeal. (Doc. 15, Ex. CC at 3 n.1 (citing Ariz. R. Crim. P. 32.2(a)(3).) Because the state court imposed a procedural bar based on Arizona law as to Claims 1 and 3, they are procedurally defaulted in this Court.
Cause and Prejudice
Petitioner did not identify cause to overcome the default of any of his claims. However, when ineffectiveness of appellate counsel was presented in state court as an independent claim, it may be used to establish cause for a procedural default. See Murray v. Carrier, 477 U.S. 478, 489 (1986). In state court, Petitioner fairly presented claims that appellate counsel was ineffective for failing to raise Claims 1 and 3 on appeal. Therefore, the Court will evaluate whether ineffective assistance of counsel (IAC) on appeal constitutes cause to excuse the default of these claims.
Counsel's ineffectiveness will constitute cause only if it rises to the level of an independent constitutional violation. See Coleman, 501 U.S. at 755. Petitioner's assertion that appellate counsel was ineffective for failing to argue Claims 1 and 3 is presented in this Court as Claims 2(a) & (c). In the merits section below, the Court evaluates Claim 2. The Court concludes that the allegations of prosecutorial misconduct (Claim 1) and error in the jury instructions (Claim 3) are without merit. And appellate counsel was not constitutionally ineffective in failing to raise these claims on appeal. In light of those findings, ineffective assistance of appellate counsel cannot operate as cause to excuse the defaults of Claims 1 and 3. Further, Petitioner has not established that he was prejudiced by counsel's failure to raise these claims on appeal.
Fundamental Miscarriage of Justice
Petitioner did not argue that a fundamental miscarriage of justice would result if his claims were not addressed on the merits. However, he suggests he was not guilty of second-degree murder and the appropriate charge was manslaughter - sudden quarrel or heat of passion. Although Petitioner did not allege it as a means to overcome default, the Court will evaluate it for that purpose.
To demonstrate a fundamental miscarriage of justice to excuse a procedural default, the petitioner must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995). To establish the requisite probability, the petitioner must show that "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. The Supreme Court has characterized the exacting nature of an actual innocence claim as follows:
[A] substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. . . . To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.Id. at 324; see also House v. Bell, 547 U.S. 518, 538 (2006). Petitioner did not identify any new reliable evidence to support such a claim. Therefore, Petitioner cannot establish a fundamental miscarriage of justice will occur if Claims 1 and 3 are not heard on the merits.
MERITS
Legal Standards for Relief under the AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) created a "highly deferential standard for evaluating state-court rulings' . . . demand[ing] that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)). Under the AEDPA, a petitioner is not entitled to habeas relief on any claim "adjudicated on the merits" by the state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). The last relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 (9th Cir. 2005).
"The threshold test under AEDPA is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final." Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under subsection (d)(1), the Court must first identify the "clearly established Federal law," if any, that governs the sufficiency of the claims on habeas review. "Clearly established" federal law consists of the holdings of the Supreme Court at the time the petitioner's state court conviction became final. Williams, 529 U.S. at 365; see Carey v. Musladin, 549 U.S. 70, 74 (2006).
The Supreme Court has provided guidance in applying each prong of § 2254(d)(1). The Court has explained that a state court decision is "contrary to" the Supreme Court's clearly established precedents if the decision applies a rule that contradicts the governing law set forth in those precedents, thereby reaching a conclusion opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Williams, 529 U.S. at 405-06; see Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). Under the "unreasonable application" prong of § 2254(d)(1), a federal habeas court may grant relief where a state court "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular . . . case" or "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend the principle to a new context where it should apply." Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent "unreasonable," the petitioner must show that the state court's decision was not merely incorrect or erroneous, but "objectively unreasonable." Id. at 409; Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Visciotti, 537 U.S. at 25. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as '"fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state court decision was based on an unreasonable determination of the facts. Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (Miller-El II). In considering a challenge under § 2254(d)(2), state court factual determinations are presumed to be correct, and a petitioner bears the "burden of rebutting this presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Landrigan, 550 U.S. at 473-74; Miller-El II, 545 U.S. at 240.
Analysis
Claims 2 and 4 allege IAC at trial and on appeal.
Claim 2
Petitioner alleges trial and appellate counsel were ineffective in failing to effectively address (a) prosecutorial misconduct; (b) the admission of Petitioner's statement; and (c) the trial court's refusal to give a manslaughter - sudden quarrel or heat of passion - instruction.
(a) Prosecutorial Misconduct
Petitioner identified three different ways he believed the prosecutor committed misconduct, by: (i) commenting on Petitioner's right to remain silent; (ii) expressing his personal opinion on Petitioner's guilt; and (iii) arguing irrelevant and prejudicial matters to the jury. He then alleged that trial and appellate counsel were ineffective in failing to challenge that misconduct.
Clearly established federal law provides that the appropriate standard of federal habeas review for a claim of prosecutorial misconduct is "the narrow one of due process, and not the broad exercise of supervisory power." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). Therefore, in order to succeed on this claim, Petitioner must prove not only that the prosecutor's remark was improper but that it "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id.; see Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (relief on such claims is limited to cases in which the petitioner can establish that prosecutorial misconduct resulted in actual prejudice) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). In determining if a petitioner's due process rights were violated by a prosecutor's remark, a reviewing court "must consider the probable effect of the prosecutor's [comments] on the jury's ability to judge the evidence fairly." United States v. Young, 470 U.S. 1, 12 (1985). Moreover, the Supreme Court has clearly indicated that the state courts have substantial latitude when considering prosecutorial misconduct claims because "constitutional line drawing [in prosecutorial misconduct cases] is necessarily imprecise." Donnelly, 416 U.S. at 645.
(i) Commenting on Petitioner's Right to Remain Silent
During opening argument, the prosecutor made the following statement: "[s]o the how she had died, what happened to her, is not an issue. . . . The way [sic?] she was killed, the only person who can tell you that was the person who killed her since she can't. There were no witnesses . . . ." (Doc. 15, Ex. U at 23, citing Ex. H at 19-20.) Petitioner argues that the prosecutor's comment drew attention to Petitioner's interrogation that the prosecutor would be introducing at trial, that to establish his innocence, Petitioner would be required to testify.
Looking at the entirety of the prosecutor's opening statement, the PCR court found that the prosecutor's statement was not misconduct. (Doc. 15, Ex. Y at 15-16.) Therefore, the court concluded that neither trial nor appellate counsel were ineffective for failing to object to the statement. (Id. at 16.) Additionally, the court found Petitioner was not prejudiced given the substantial evidence of his guilt and the instruction to the jury that it could not consider the defendant's decision not to testify. (Id. at 16-17.)
The Supreme Court holds that: "the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids [ ] comment by the prosecution on the accused's silence . . . ." Griffin v. California, 380 U.S. 609, 615 (1965); Stewart v. United States, 366 U.S. 1, 2 (1961) ("if the defendant chooses not to take the stand, no comment or argument about his failure to testify is permitted."). The Supreme Court has made clear that comment on a defendant's failure to testify is a constitutional violation. See Chapman v. California, 386 U.S. 18, 26-27 (1967) (overturning convictions based on repeated statements by prosecutor that only defendants could have provided testimony on particular topics, and they did not do so). A Fifth Amendment violation under Griffin is subject to harmless error analysis on habeas review, which asks whether the error "had substantial and injurious effect or influence in determining the jury's verdict." Chapman, 386 U.S. at 22; Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). That standard is met "where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis of conviction, and where there is evidence that could have supported acquittal." Anderson v. Nelson, 390 U.S. 523, 523-24 (1968).
Here, the prosecutor did not make a direct comment on Petitioner's decision not to testify at trial. Given that trial had not begun, the prosecutor did not know if Petitioner would exercise his right to remain silent. Instead, the prosecutor's opening argument referenced Petitioner's interrogation, evidence which he introduced in entirety during trial. The prosecutor's singular remark was isolated, and he did not urge a finding of guilt based on Petitioner's silence. See Id. Further, the Court assumes the jury followed the instruction to give no weight to Petitioner's decision not to testify (Doc. 15, Ex. I at 81). See Richardson v. Marsh, 481 U.S. 200, 206 (1987) (citing Francis v. Franklin, 471 U.S. 307, 325, n.9 (1985)). For these reasons, the prosecutor's statement did not infect the trial with unfairness or have a "substantial and injurious effect or influence in determining the jury's verdict." See Brecht, 507 U.S. at 637.
(ii) Expressing Personal Opinion on Petitioner's Guilt
Petitioner argues the prosecutor committed misconduct in violation of the Constitution by expressing his personal opinion about that Petitioner was guilty. In rebuttal closing argument, the prosecutor stated that Petitioner was lucky to have been charged only with second degree murder. "We have proved premeditated murder, but we didn't charge it. That doesn't mean I can't prove more." (Doc. 15, Ex. U at 26, citing Ex. I at 95.) The PCR court found that, although the prosecutor should not have mentioned first-degree murder, it was not so prejudicial as to deprive Petitioner of a fair trial. (Doc. 15, Ex. Y at 20.) Further, the jury was presumed to follow its instructions, which included the elements of the charged crimes and the direction that attorney arguments are not evidence. (Id.)
The prosecutor did not offer his opinion on Petitioner's guilt. Although he should not have mentioned an uncharged crime, he argued only what he believed the State had proven, not his belief about Petitioner's guilt. See Lawn v. United States, 355 U.S. 339, 359 (1958) (finding prosecutor did not act improperly because he did not "say nor insinuate that the statement was based on personal knowledge or on anything other than the testimony of those witnesses given before the jury). The Court finds this singular statement by the prosecutor, coupled with the jury instructions, did not so infect Petitioner's trial that he was denied due process.
(iii) Arguing Irrelevant and Prejudicial Matters
Petitioner argues that the prosecutor improperly compared Petitioner to fictional characters that verbally abused their wives. He referred to Archie Bunker during opening statements:
Now, [the victim] and the defendant, so like Edith and Archie Bunker, if you remember the old one, they each had a chair. They sat in the living room. Well, here they sat outside. She was a smoker, and there is a little table. You will see the photographs, but I sort of want to orient you to where this happened. The incident as far as her being killed happened right by her chair.(Doc. 15, Ex. U at 25, citing Ex. H at 25-26.) And to Ralph Kramden during closing arguments (in relation to a Guns and Roses song):
I used to love her but I had to kill her. I put her six feet under but I can still hear her complain. Maybe it was a facetious song, sort of like Ralph Kramden. He was always threatening to send Alice to the moon. To the moon, Alice. And like anyone else who either hits their wife, and any man who does it, it's always, baby, why did you do this. She was provoking me. It's never his fault. It was Kim's fault.(Id., citing Ex. I at 92-93.)
The PCR court found that the reference to Archie Bunker referred only to his side-by-side seating arrangement with his wife, mimicked by Petitioner's and the victim's seating arrangement, and was not improper. (Doc. 15, Ex. Y at 18.) Further, if improper, it was not so serious as to deprive Petitioner of a fair trial. (Id.) The PCR court found the references in closing arguments to domestic violence were limited and balanced by references to Petitioner being a nice man. Overall, the court found the statements were not improper and did not deprive Petitioner of a fair trial. (Id. at 19.)
During closing argument, "prosecutors are allowed reasonably wide latitude and are free to argue reasonable inferences from the evidence." United States v. McChristian, 47 F.3d 1499, 1507 (9th Cir. 1995); see United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997). The reference to Archie Bunker was innocuous and would have had no impact on the jury's handling of the case. In Petitioner's statement to the police, he suggested he was provoked by the victim's treatment of him; therefore, the prosecutor reasonably argued that Petitioner blamed the victim for bringing the violence upon herself. To the extent this argument by the prosecutor was improper, it was raised only once and did not render the entirety of the proceeding unfair. Therefore, the prosecutor's statement did not deprive Petitioner of due process.
(iv) Conduct of Counsel
Petitioner alleged that trial and appellate counsel were ineffective for failing to challenge the prosecutor's misconduct as alleged in subparts (i) - (iii). The PCR court concluded that trial counsel's conduct was not unreasonable because the decisions could have been tactical in nature. (Doc. 15, Ex. Y at 20.) More critically, Petitioner was not prejudiced by the lack of objection in light of the strong evidence presented against him at trial. (Id.) The court also concluded that appellate counsel was not ineffective for failing to raise prosecutorial misconduct because there was not a reasonable probability that he would have succeeded on these claims. The court of appeals found no error in the PCR court's conclusion that there was not a reasonable probability that the prosecutor's comments affected the jury's verdict or deprived Petitioner of a fair trial. (Doc. 15, Ex. CC at 3.) Therefore, it was not error to conclude that neither trial nor appellate counsel was ineffective. (Id.)
Because the Court concluded, here, that the prosecutor did not commit misconduct, counsel did not behave unreasonably by not raising these arguments at trial or on appeal. The PCR court, which sat as the trial court, did not believe objections by counsel would have changed the outcome. Similarly, the appellate court concluded there was no prosecutorial misconduct rising to the level of a due process violation; therefore, it would not have granted relief on a prosecutorial misconduct claim. Thus, Petitioner was not prejudiced by counsel's failure to argue prosecutorial misconduct because there is not a reasonable probability that the outcome of trial or appeal would have been different if he had argued these claims. At a minimum, the state courts' denial of these claims was not an objectively unreasonable application of clearly established federal law.
(b) Admission of Petitioner's Statement
Petitioner argues that trial counsel failed to argue to the trial court that his statement was not admissible because the police used a ruse to coerce Petitioner's confession. Specifically, the officers told Petitioner that the victim had made a statement against him and would provide further information after she was out of surgery. In fact, the victim made no statement and the officers learned she had died. Petitioner argues that, in seeking to have his statement suppressed, counsel should have relied upon the ruse and repeated promises to Petitioner. Petitioner argues that the officers made promises of leniency and threats of harsh treatment, as well as indicating the victim might be charged if he provided more information. Petitioner argues that, in filing to suppress his statement, trial counsel erroneously focused only on some of the implied promises. Petitioner also argues that appellate counsel entirely failed to argue that his confession was involuntary.
In support of this claim, Petitioner cited his statement as admitted at trial. In the interrogation, the officers told Petitioner (falsely) that the victim implicated him when she was taken to the hospital, asking why he hurt her. (Doc. 15-2 at 72, 78.) The officers then asked several times why the victim would say that. (Id. at 72-74.) Petitioner relied particularly on the following statements by the detectives (unless identified as a statement by Petitioner):
The officers discussed charging decisions, levels of responsibility, and cooperation. Initially, the officers indicated they were just talking about assault. (Id. at 80.)
"It's better for you to explain what happened in your own words and, maybe, it's not so bad." (Id.)
"Arnold you are just digging yourself a bigger hole by continuing to deny this. You're just making, you're making the situation worse than it has to be." (Id. at 81.)
Petitioner asked if he would go to jail if he were to state that he did it. (Id. at 89.)
Petitioner discussed how the victim treated him, hurting him emotionally, and that she had been provoking him. (Id. at 90-97.) He stated that she was manipulating him a lot. (Id. at 102.) He said she was messing with people's lives, and he did a lot for her. (Id. at 103-04.) Petitioner stated that the victim would physically push him around. (Id. at 111.)
After asking Petitioner what happened, the officer explained that he needed to know why Petitioner did it. (Id. at 108.)
The officer agreed that the victim was a manipulator and emotionally abusing Petitioner. (Id. at 116.)
"All of that comes into play in determining if we arrest somebody and if we do charge them with something." (Id. at 119.)
An officer discussed aggravated assault. "We definitely look at culpability which would be like, how much involvement did that other person, how much are they responsible. Like, basically in here, how much is she responsible for what happened and I'm kind of getting a pretty good idea from what you're telling me and I would say a pretty good deal." (Id. at 121.)
Petitioner asked if the victim would be punished for provoking him. "I don't know. I mean, it's something we'll consider . . . I would say she's provoking you. Now what level of responsibility you know, I'm gonna have to probably discuss that with other people and see what happens . . . How much, ah, responsibility is gonna be on her and then versus you guys." (Id. at 127.)
"It might affect us charging that other person." (Id. at 128.)
"We haven't talked to her fully. She just made that statement to the officer. She's been in surgery and everything . . ." (Id. at 130.)
"And so what happened this morning when you couldn't take it anymore though? That's what I need to know?" (Id.)
Petitioner: "You know what happened? . . . I just grabbed it and I threw it at her. I didn't swing it." (Id. at 131.)
Officer discussed charging and suggested aggravated assault because of the weapon. (Id. at 142.)
"Do you think that when she can finally talk more do you think she is gonna say that you did this on purpose?" (Id. at 144.)
"Do you think she is gonna tell us, oh yeah, he came to me with the crow bar and hit me?" (Id. at 145.)
Officer tells him they will come back with more information on what will happen to him. (Id. at 145-46.)
Petitioner: "I just got so scared . . .when the crowbar hit her the first time." (Id. at 148.)
Petitioner: "I guess I hit her with it." (Id. at 149.)
"Unfortunately Kim died at the hospital. Not too long ago." (Id. at 152.)
"Cause this is now a homicide." (Id. at 153.)
The PCR court found that the officers' statements encouraging Petitioner to tell the truth or indicating they did not believe him were not unlawful because they were not accompanied by threats or promises to Petitioner. (Doc. 15, Ex. Y at 5, 6.) If the challenged statements by the officers could be interpreted as promises, the PCR court found they were sufficiently removed in time from Petitioner's inculpatory statements such that the evidence did not support finding that he relied upon them. (Id. at 6.) The PCR court determined that trial counsel's decision not to raise the issue of the officer's ruse was a strategic decision and not an objectively unreasonable one. (Doc. 15, Ex. Y at 7 n.5.) Further, the court found that even if counsel had presented a comprehensive argument including the officers' ruse, the court would still have found that Petitioner's will was not overborn, and the confession was voluntary. (Id. at 10.) Because the motion to suppress still would have been denied, the PCR court found that Petitioner was not prejudiced. (Id.) Also because Petitioner did not establish that the outcome of the appeal would have been different if counsel had raised this issue, the PCR court found he had not shown he was prejudiced by appellate counsel's conduct. (Id. at 6.) The court of appeals found no error in the PCR court's conclusion that the Petitioner's statements were voluntary. (Doc. 15, Ex. CC at 3.) Therefore, the PCR court did not err in concluding that neither trial nor appellate counsel were ineffective in failing to challenge the voluntariness of Petitioner's statement on the basis identified by PCR counsel. (Id.)
The test for determining the voluntariness of a suspect's confession is whether, considering all the circumstances, the government obtained the statement by physical or psychological coercion or by inducement so that the suspect's will was overcome. See United States v. Coutchavlis, 260 F.3d 1149, 1158 (9th Cir. 2001) (citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963)). The circumstances to be considered include: (1) whether there was police coercion; (2) the length of the interrogation, its location, and its continuity; (3) whether police advised the suspect of his rights; and (4) whether there were any direct or implied promises of a benefit. Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 71 (2003). Courts also consider the defendant's age, education, the nature of any questioning, and the use of any physical punishment such as the deprivation of food or sleep to determine voluntariness. See United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). A statement will be found involuntary if agents "use coercive means to undermine the suspect's ability to exercise his free will." Henry v. Kernan, 197 F.3d 1021, 1026 (9th Cir. 1999). Coercive action by the police is a prerequisite to finding that a statement is involuntary. See Colorado v. Connelly, 479 U.S. 157, 167 (1986). "In short the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort." Haynes, 373 U.S. at 513-14.
Prior to asking Petitioner any questions that might elicit an incriminating response, an officer informed Petitioner of his Miranda rights and he waived them. (Doc. 15-2 at 21.) At the start of the interview, Petitioner's interrogators made sure he had water and was sitting in a chair that was comfortable for him. (Id. at 14.) Part way through the interrogation they asked if he would like any food or water. (Id. at 84, 88.) They offered and allowed Petitioner to use the restroom as needed. (Id. at 85, 102.) The interrogation, which was conducted at the police station, lasted for four hours and forty minutes including three breaks lasting for a cumulative total of more than one hour. (Id. at 14-158.)
Having reviewed the entirety of the interrogation transcript, the Court finds there was no police coercion. The fact that the detectives provided Petitioner false information about the victim being alive and having made a statement against him does not, by itself, render the confession involuntary. See Frazier v. Cupp, 394 U.S. 731, 737 (1969). The detectives used an empathetic approach to the interrogation, offering Petitioner understanding and reassurance. While the detectives pressed him to tell the truth and suggested that would be to his benefit, they did not make any direct or implied promises to him. Petitioner made inquiries about what would happen to him and the charges he might face. In response, detectives discussed possibilities but made no threats or guarantees and indicated they did not have full control over that decision. There was no action on the part of the detectives that undermined Petitioner's free will and rendered his statement involuntary.
If trial counsel had argued for suppression based on the officers' ruse and alleged promises, there is not a reasonable probability that Petitioner's statement would have been suppressed because the PCR court rejected this argument. Similarly, the appellate court agreed that Petitioner's statement was voluntary; therefore, it would not have granted relief if appellate counsel had challenged the admission of Petitioner's statements. In sum, if trial or appellate counsel had argued the voluntariness of Petitioner's statement, based on the ruse used by the officers, there is not a reasonable probability the argument would have been successful. Therefore, counsel was not ineffective in failing to raise the issue. At a minimum, the state courts' denial of these claims was not an objectively unreasonable application of clearly established federal law.
(c) Manslaughter - Instant Quarrel or Heat of Passion - Jury Instruction
Petitioner contends he was entitled to a manslaughter - instant quarrel or heat of passion - instruction and that his trial counsel and appellate counsel did not pursue the issue effectively. A person commits provocation manslaughter by "committing second degree murder . . . upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim." A.R.S. § 13-1103(A)(2). "'Adequate provocation' means conduct or circumstances sufficient to deprive a reasonable person of self-control." A.R.S. § 13-1101(4). "[T]he 'hot blood' engendered in the particular defendant shall not have cooled and there must not have been an elapse of time, a so-called 'cooling period,' between the provocation and the killing within which the 'hot blood' of a reasonable man would have cooled and his fury subsided." State v. Ramirez, 116 Ariz. 259, 271, 569 P.2d 201, 213 (1977) (citing LaFave and Scott, Criminal Law, s 76, pp. 579-81). Trial counsel requested an instruction on manslaughter - sudden quarrel or heat of passion - which the court denied. (Doc. 15, Ex. I at 71, 73.)
Petitioner cites evidence presented at trial that he thought justified a manslaughter-provocation instruction. Those facts included evidence from the days leading up to the killing, that the victim had told Petitioner many painful things and was ending the relationship; and, just after the killing, Petitioner was very upset, crying, scared, and confused. (Doc. 15, Ex. U at 14-15.) The victim's daughter testified that her mother told Petitioner she was moving out, and Petitioner learned a week before the killing that she had another man in her life. In Petitioner's statement, which was admitted at trial, Petitioner stated that he treated the victim well. (Id. at 15.) He also indicated the killing occurred because the victim was messing with people's lives; and that the victim made statements about the person who paid for their house having certain rights. (Id. at 19.)
Petitioner also cited evidence he believed should have been allowed at trial. (Id. at 16-17.) In her police interview, the victim's daughter opined that Petitioner must have lost his mind due to grief over the death of his son and the victim leaving him. (Doc. 15-2 at 208.) An officer could have testified that, at the time of his arrest, Petitioner was very upset, experiencing mood swings, and behaving erratically. (Doc. 15-2 at 179.) Petitioner presented a report by a Dr. Pellegrin that explained how a normally peaceful person can have a rage reaction in the heat of passion when triggered by a problem (insult, family, mate, and resources), which the person would likely react to in a disproportionate way. (Doc. 15, Ex. U at 27; Doc. 15-2 at 221-22.) Petitioner's brother could have testified that, the night of the crime, Petitioner was depressed over his son's death and the status of his relationship with the victim, but his brother did not anticipate something traumatic was imminent. (Doc. 15-2 at 241-42.) Petitioner contends counsel should have presented this evidence to the trial court in support of a manslaughter - provocation instruction. (Doc. 15, Ex. U at 17.)
The PCR court concluded that the only evidence of relevance was that related to what occurred between Petitioner and the victim in the yard shortly before the killing; anything occurring prior to the time would have allowed for a cooling off period that negated heat of passion. (Doc. 15, Ex. Y at 12.) Thus, Petitioner's evidence that the victim had subjected him to emotional abuse in the weeks prior to her death was not relevant to the jury instructions. The court noted that the only trial evidence about the period of time just before the killing was Petitioner's confession. (Id.) Based on the limited relevant evidence, the PCR court found a manslaughter - sudden quarrel or heat of passion - instruction was not warranted. (Id.) The PCR court concluded that trial counsel acted with reasonable trial strategy in how he argued for a manslaughter instruction based on sudden quarrel or heat of passion. (Id. at 13.) Further, the PCR court found that expert testimony on a defendant's state of mind at the time of the crime was not allowed under Arizona law; therefore, counsel's strategy not to present expert testimony on that point was reasonable. (Id. at 13-14.) Finally, the PCR court determined that Petitioner was not prejudiced by appellate counsel's failure to raise this issue on appeal because there was not a reasonable probability the court would have ruled in his favor. (Id. at 14.)
The court of appeals found no error in the PCR court's conclusion that there was insufficient evidence for the jury to find the killing was due to sudden quarrel or heat of passion provoked by the victim. (Doc. 15, Ex. CC at 3.) Therefore, the appellate court concluded that neither trial nor appellate counsel was ineffective for failing to argue, or make additional arguments, in support of a manslaughter - provocation instruction. (Id. at 3.) Additionally, the appellate court found that counsel was not ineffective in failing to seek admission of expert testimony on Petitioner's state of mind at the time of the crime because it was not admissible under state law. (Id. at 4.)
When Petitioner was interrogated, he did not identify any actions or words by the victim in the time shortly before she was killed. Early in the interrogation, prior to Petitioner admitting any involvement in the killing, he stated, "I didn't talk to [the victim] this morning." (Doc. 15-2 at 75.) Petitioner never revealed any words or actions by the victim the morning of the killing (even after admitting he hit the victim with the crowbar), despite the detective asking him repeatedly about what led him to hit the victim. Instead, he talked extensively about how the victim had treated him in days prior. As found by the PCR court, there was a sufficient cooling off period between any identified provocation and the killing. Because there was a complete absence of evidence to support a finding of manslaughter - sudden quarrel or heat of passion - there was not a reasonable probability that the outcome would have been different if trial counsel had advocated differently for that instruction or if appellate counsel had raised a claim based on the absence of such an instruction. At a minimum, the state court's denial of this claim was not objectively unreasonable.
Claim 4
Petitioner alleges trial counsel was ineffective at sentencing in failing to obtain expert psychological testimony to explain the reason for the killing. In the PCR proceeding, Petitioner presented Dr. Pellegrin's report that explained how a normally peaceful person can have a rage reaction in the heat of passion when triggered by particular issues. (Doc. 15, Ex. U at 27; Doc. 15-2 at 221-22.) Petitioner argues this information should have been presented at sentencing as mitigation.
The PCR court noted that counsel's strategy at sentencing was for Petitioner to remain silent due to his pending appeal. (Doc. 15, Ex. U at 21.) That strategy did not leave room for the psychological testimony suggested by PCR counsel. (Id.) Further, the PCR court found no prejudice because, as the judge that sentenced Petitioner, he concluded the presumptive term was the appropriate sentence even in light of the newly presented psychological testimony. (Id.) The court of appeals found Petitioner was not prejudiced by counsel's failure to present this expert testimony at sentencing because the sentencing court concluded it would not have changed the sentence. (Doc. 15, Ex. CC at 4.)
The trial court determined, based on all of the trial evidence, that the killing was not done in the heat of passion. (Doc. 15, Ex. I at 73.) Therefore, the expert testimony had no relevance to the trial evidence. More importantly, Petitioner is unable to establish prejudice in light of the sentencing judge's finding that presentation of expert testimony at sentencing would not have persuaded him to impose a different sentence. At a minimum, it was not objectively unreasonable for the state court to reach this conclusion in light of the sentencing judge's finding.
CONCLUSION AND RECOMMENDATION
Claims 1 and 3 are procedurally defaulted based on a state law procedural bar imposed by the Arizona Court of Appeals. Petitioner has not established cause and prejudice to overcome the defaults or that a fundamental miscarriage of justice will occur if Claims 1 and 3 are not addressed on the merits. Claims 2 and 4 are without merit. Based on the foregoing, the Magistrate Judge recommends that the District Court enter an order Dismissing the Petition for Writ of Habeas Corpus.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No. reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-20-311-JCH.